APPEAL
from the district court for Douglas county: WILLIS G. SEARS
JUDGE. Affirmed.
AFFIRMED.
L. D
Holmes, for appellant.
John L
Webster, W. J. Connell and Victor McLucas, contra.
OPINION
ROSE,
J.
An
electric passenger car operated by defendant on its street
railway in Omaha struck and injured plaintiff, and this suit
was brought by him to recover damages in the sum of $ 10,000.
A general demurrer to the petition was sustained by the trial
court. Plaintiff refused to plead further, and stood upon his
petition. A dismissal of the case followed, and plaintiff
appeals.
The
only question presented is the sufficiency of the petition to state a cause of action. The allegations
material to this inquiry are: "(1) The defendant herein
is a corporation duly organized and engaged in the business
of operating street cars in the city of Omaha and other
places for the purpose of carrying passengers.
"(2)
That on October 17, 1905, the plaintiff, desiring to take the
electric car of the defendant going east on California street
at the east side of Thirtieth street and at the intersection
of said streets, passed from the north side of said
California street south and across the tracks of the said
defendant until he reached a point upon said crossing, as he
supposed, south of the tracks of the said defendant; that the
night was dark, and the ground was muddy, and he was unable
to see the tracks of the said defendant or the said
cross-walk, but was standing on said cross-walk, as he
afterward ascertained, about six inches north of the south
rail of the said south track of the defendant, while waiting
for said car, instead of south of said track, as he intended
and supposed; that, while he was so standing, one of
defendant's electric cars approached from the west coming
over the hill west of Thirtieth street, and was running at a
very great rate of speed; that plaintiff could not and did
not discover that he was inside of said track as above
alleged until the car was within about 30 feet of the place
where he was standing; that he then discovered for the first
time that he was in a position of danger, and immediately
sprang toward the south to escape the car, but it was running
so fast that it struck him before he could escape danger, and
the car ran the full length of itself after it had struck
him, and knocked him down before it stopped. Plaintiff
further alleges that said car was provided with a headlight,
and the motorman could have seen this plaintiff from his
station on the car a long time before said car reached the
place where plaintiff was standing, and could have stopped
the car after discovering plaintiff's peril and before it
struck the plaintiff had he used reasonable diligence, but
wrongfully neglected to ring the bell or give
any warning to this plaintiff, and wrongfully and negligently
ran said car against this plaintiff. Wherefore the plaintiff
says that said defendant wrongfully and negligently injured
and wounded the said plaintiff without negligence on his
part. Plaintiff further alleges that said car was running
swiftly eastward at the intersection of Thirtieth and
California streets, and the motorman carelessly and
negligently caused said car to be running swiftly at that
point, and wrongfully and negligently failed to have said car
under his control, and thereby wrongfully and negligently
caused said car to run against said plaintiff, and to bruise
and wound him without negligence on his part."
In the
argument to sustain the petition plaintiff insists that his
being on the street railway track was not negligence as a
matter of law, and that he did all a reasonably prudent
person could do to protect himself from injury. The trial
court took a different view of the controversy. The petition
shows that plaintiff was standing between the rails of
defendant's track. He was on the proper cross-walk
waiting for an eastbound car on California street to approach
from the west. The car that struck him came from that
direction on the street named, and was provided with a
headlight, which would necessarily shine in front of the car
between the rails. There was nothing between him and the
approaching car to prevent him from seeing the headlight, and
for a long distance his view of the lighted car was
unobstructed; otherwise he could not have alleged that by
reason of the headlight the motorman could have seen him a
long time before the car reached the place where he was
standing. From where he stood the darkness would naturally
heighten the effect of the approaching...
